Troland v. MEG Property Services, LLC

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (#113)

Cole-Chu, J.

The
plaintiff, Kelly Troland, who is representing herself,
brought this action in small claims court, whence it was
removed to this court on January 17, 2014, by the defendants,
MEG Property Services, LLC (MEG), and Bert L. Davis (Davis).
The plaintiff filed a revised complaint on August 22, 2014
(#107, the complaint), for negligence arising from the loss
of the plaintiff's personal property, including jewelry,
a jewelry armoire and one cat, during or after her eviction
from apartment #8 at 17 Greenway Road in New London (the
premises). The defendants filed an answer and two special
defenses to the revised complaint, and a counterclaim
(collectively #108), on September 22, 2014. On May 24, 2016,
the defendants filed a motion for summary judgment (#113) to
which the plaintiff on July 25, 2016 filed an objection
(#122; Pl.'s Aff. pp. 11-12). The motion was argued on
October 17, 2016.

On a
motion for summary judgment in this court, the movant has the
burden of submitting evidence to demonstrate the absence of
all genuine issues of material fact and that it is entitled
to judgment as a matter of law. Romprey v. Safeco Ins.
Co. of America,310 Conn. 304, 320, 77 A.3d 726 (2013).
To meet its burden, the moving party must " make a
showing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any genuine
issue of material fact." (Internal quotation marks
omitted.) Id.

There
are three grounds of the defendants' motion which the
court will address in reverse order. First, defendant MEG
claims entitlement to summary judgment because none of the
allegations of the complaint are against MEG. That is true.
Indeed, except in its caption, MEG is not mentioned in the
complaint. Although as a form of public service and as a
matter of policy, courts show reasonable flexibility in the
enforcement of the rules of practice against self-represented
parties; Orcutt v. Commissioner of Correction, 284
Conn. 724, 740 n.26, 937A.2d 656 (2007); self-represented
parties are bound to comply with the rules of court and
substantive law. Kaddah v. Commissioner of
Correction,299 Conn. 129, 140, 7 A.3d 911 (2010). MEG
is not the plaintiff's landlord: the complaint alleges
that her landlord was Mark Grillo, who is not a named
defendant, and that the theft of her jewelry was caused by
the negligence of Grillo and Davis. If in this situation the
court did not find MEG entitled to judgment, it would be
difficult to imagine when summary judgment could be granted.

The
defendants' next ground is that, as a matter of law, the
plaintiff cannot establish negligence as to Davis. "
Issues of negligence are ordinarily not susceptible of
summary adjudication but should be resolved by trial in the
ordinary manner." (Internal quotation marks omitted.)
Fogarty v. Rashaw,193 Conn. 442, 446, 476 A.2d 582
(1984), quoting Spencer v. Good Earth Restaurant
Corp.,164 Conn. 194, 199, 399 A.2d 403 (1972). Summary
judgment is " ill-adapted to negligence cases, where
.... the ultimate issue.... involves a mixed question of fact
and law, and requires the trier of fact to determine whether
the standard of care was met in a specific situation."
(Internal quotation marks omitted.) Spencer v. Good Earth
Restaurant Corp., supra, 164 Conn. 198. The conclusion
of negligence requires findings of fact. Id. So it
is in this case.

Davis
argues that the plaintiff's allegations arise from an
eviction in which a marshal was in control and that he,
Davis, cannot be held responsible for the intentional acts of
third parties. Even to consider that argument requires
assumptions of fact because the plaintiff herself does not
claim to know exactly what happened to her jewelry. The court
cannot find as a matter of law that the plaintiff s jewelry
was even stolen and, therefore, that the plaintiff cannot as
a matter of law prevail against Davis on the basis of a third
party's intentional, intervening acts. The plaintiff
admits in her complaint that she " helped to gather
[her] belongings that [October 6, 2011] afternoon [for] a few
hours.... " The plaintiff essentially admits
that that day was the first of two days in which the eviction
took place, that she knew she was no longer in possession of
the premises, and that a marshal would be moving her property
out the next day. Under such circumstances, a tenant might
reasonably remove valuables while she still had ready access
to them. Why she left them is among the subordinate questions
of fact in determining where in the premises she left them
and whether her " jewelry....was nowhere to be
found." The next day, October 7, whether and by whom the
plaintiff was told she " could go into the bedroom and
hallway closet first to personally retrieve [her] fine
jewelry" or " could return to personally pack [her]
jewelry and to retrieve [her] cat" - and whether Davis
prevented her from going in the bedroom to get the jewelry
and said, " if [she] returned to the premises to attempt
to gather [her] belongings....[she] would be arrested",
which Davis denies under oath, are questions for the trier of
fact. That a case may be weak is not the standard for finding
a defendant entitled to judgment as a matter of law. See
Haines v. Kerner,404 U.S. 519, 520-21, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972) (merits aside, where court cannot
say beyond doubt that pro se plaintiff cannot prove right to
relief, he is entitled to opportunity to prove his case).

Finally,
Davis claims entitlement to judgment because this action is
barred by the applicable two-year statute of limitations in
General Statutes § 52-584. [1] Davis properly assumes
that the plaintiff discovered the alleged theft on November
2, 2011, the day she reported it to the police and claims
that the date he was served with the small claims court
process in this case, November 27, 2013, is more than two
years after that discovery. The marshal's return does
show service on Davis on November 27, 2013, and, of course,
that is more than two years after November 2, 2011. However,
General Statutes § 52-593a (a) provides in pertinent
part that " [a] cause or right of action shall not be
lost because of the passage of the time limited by law within
which the action may be brought, if the process to be served
is personally delivered to a state marshal.... within such
time and the process is served, as provided by law, within
thirty days of the delivery" . [2] See Dorry v.
Garden,313 Conn. 516, 533, 98 A.3d 55, 65 (2014)
(§ 52-593a is a

remedial
statute which saves an action that otherwise would be lost
due to passage of time). The sworn small claims complaint was
apparently signed in October of 2013. (The day in October
cannot be read with confidence.) See defendants' brief
(#114), Ex. C. That is before the second anniversary of the
plaintiff's claimed discovery of the alleged theft,
November 2, 2011 - a date assumed by the defendants, and
therefore by the court, for present purposes. The
marshal's return does not state, as § 52-593a (b)
directs, the date the plaintiff delivered the process to him
for service. Because it is possible that the plaintiff placed
process in this case in the hands of the marshal for service
before the statute of limitation ran, defendant Davis has
failed to bear his burden of proof of entitlement to judgment
on this ground as a matter of law. The court cannot base
summary judgment on conjecture. See Buell Industries,
Inc. v. Greater New York Mutual Ins. Co.,259 Conn. 527,
558, 791 A.2d 489 (2002).

For the
foregoing reasons, MEG has borne its burden of proof of
entitlement to judgment and Davis has not. Summary judgment
is therefore granted as to MEG and denied as to Davis.

---------

Notes:

[1]Section 52-584 provides, in pertinent part:
" No action to recover damages for injury to the person,
or to real or personal property, caused by
negligence....shall be brought but within two years from the
date when the injury is first sustained or discovered or in
the exercise of reasonable care should have been discovered
......"

[2]Section 52-593a, entitled " Action not
lost where process served after expiration of limitation
period", provides in pertinent part: " (a) ...... a
cause or right of action shall not be lost because of the
passage of the time limited by law within which the action
may be brought, if the process to be served is personally
delivered to a state marshal....within such time and the
process is served, as provided by law, within thirty days of
the delivery, (b) In any such case, the officer making
service shall endorse under oath on such ...

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